Bill Text: NY A04991 | 2009-2010 | General Assembly | Introduced

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Bill Title: An act to amend the general business law, in relation to prohibiting the transmission of unsolicited bulk electronic mail through an electronic mail service provider's network located in this state

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2010-01-06 - referred to consumer affairs and protection [A04991 Detail]

Download: New_York-2009-A04991-Introduced.html

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                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         4991
                              2009-2010 Regular Sessions
                                 I N  A S S E M B L Y
                                   February 10, 2009
                                      ___________
       Introduced  by M. of A. BRODSKY -- read once and referred to the Commit-
         tee on Consumer Affairs and Protection
       AN ACT to amend the general business law, in relation to prohibiting the
         transmission of unsolicited bulk electronic mail through an electronic
         mail service provider's network located in this state
         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. The general business law is amended by adding a new section
    2  396-ii to read as follows:
    3    S  396-II.  UNLAWFUL TRANSMISSION OF UNSOLICITED BULK ELECTRONIC MAIL.
    4  1. IT SHALL BE UNLAWFUL FOR A PERSON OR  OTHER  ENTITY  TO  TRANSMIT  OR
    5  CAUSE THE TRANSMISSION OF UNSOLICITED BULK ELECTRONIC MAIL TO OR THROUGH
    6  AN  ELECTRONIC  MAIL SERVICE PROVIDER'S COMPUTER NETWORK LOCATED IN THIS
    7  STATE. FOR PURPOSES OF  THIS  SECTION:  (A)  "COMPUTER  SERVICES"  MEANS
    8  COMPUTER  TIME,  INCLUDING  DATA PROCESSING SERVICES, INTERNET SERVICES,
    9  ELECTRONIC MAIL SERVICES, ELECTRONIC MESSAGE SERVICES, OR INFORMATION OR
   10  DATA STORED IN CONNECTION  THEREWITH.    (B)  "ELECTRONIC  MAIL  SERVICE
   11  PROVIDER" MEANS ANY PERSON OR OTHER ENTITY WHO OR WHICH (I) IS AN INTER-
   12  MEDIARY  SENDING  OR  RECEIVING  ELECTRONIC  MAIL  AND  (II) PROVIDES TO
   13  END-USERS OF ELECTRONIC MAIL SERVICES THE ABILITY  TO  SEND  OR  RECEIVE
   14  ELECTRONIC MAIL.
   15    2.    NO  PERSON  OR  OTHER ENTITY SHALL WITHOUT AUTHORITY TRANSMIT OR
   16  CAUSE TO BE TRANSMITTED ANY UNSOLICITED ELECTRONIC MAIL.   A  PERSON  OR
   17  OTHER ENTITY IS "WITHOUT AUTHORITY" WHEN (A) HE, SHE  OR IT HAS NO RIGHT
   18  OR PERMISSION OF THE OWNER TO USE A COMPUTER OR (B) HE, SHE OR IT USES A
   19  COMPUTER  OR  COMPUTER  NETWORK WITHOUT AUTHORITY AND WITH THE INTENT TO
   20  FALSIFY OR FORGE ELECTRONIC MAIL    TRANSMISSION  INFORMATION  OR  OTHER
   21  ROUTING  INFORMATION, IN ANY MANNER, IN CONNECTION WITH THE TRANSMISSION
   22  OF UNSOLICITED BULK ELECTRONIC MAIL THROUGH OR INTO THE COMPUTER NETWORK
   23  OF AN ELECTRONIC MAIL SERVICE  PROVIDER OR ITS SUBSCRIBER.
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD08653-01-9
       A. 4991                             2
    1    3. IT IS UNLAWFUL FOR ANY PERSON OR OTHER  ENTITY  TO  SELL,  GIVE  OR
    2  OTHERWISE  DISTRIBUTE  OR  POSSESS  WITH  THE  INTENT  TO  SELL, GIVE OR
    3  DISTRIBUTE SOFTWARE WHICH (A) IS PRIMARILY DESIGNED OR PRODUCED FOR  THE
    4  PURPOSE OF FACILITATING OR ENABLING THE FALSIFICATION OF ELECTRONIC MAIL
    5  TRANSMISSION  INFORMATION  OR  OTHER  ROUTING  INFORMATION; (B) HAS ONLY
    6  LIMITED COMMERCIALLY SIGNIFICANT PURPOSE OR USE OTHER THAN TO FACILITATE
    7  OR ENABLE THE FALSIFICATION OF ELECTRONIC MAIL TRANSMISSION  INFORMATION
    8  OR OTHER ROUTING INFORMATION; OR (C) IS MARKETED BY THAT PERSON OR OTHER
    9  ENTITY  OR  ANOTHER  ACTING  IN CONCERT WITH THAT PERSON OR OTHER ENTITY
   10  WITH THAT PERSON'S OR OTHER ENTITY'S KNOWLEDGE FOR USE  IN  FACILITATING
   11  OR  ENABLING  THE FALSIFICATION OF ELECTRONIC MAIL TRANSMISSION INFORMA-
   12  TION OR OTHER ROUTING INFORMATION.
   13    4. ANY PERSON OR OTHER ENTITY WHO VIOLATES THIS SECTION SHALL BE GUIL-
   14  TY OF COMPUTER TRESPASS, WHICH OFFENSE SHALL BE PUNISHABLE AS  A  MISDE-
   15  MEANOR, IF THERE IS DAMAGE TO THE PROPERTY OF ANOTHER.
   16    5.  NOTHING  IN  THIS  SECTION SHALL BE CONSTRUED TO INTERFERE WITH OR
   17  PROHIBIT TERMS OR CONDITIONS IN A CONTRACT OR LICENSE RELATED TO COMPUT-
   18  ERS, COMPUTER DATA,   COMPUTER NETWORKS, COMPUTER  OPERATIONS,  COMPUTER
   19  PROGRAMS,  COMPUTER  SERVICES  OR  COMPUTER  SOFTWARE,  OR TO CREATE ANY
   20  LIABILITY BY REASON OF TERMS OR  CONDITIONS  ADOPTED  BY,  OR  TECHNICAL
   21  MEASURES  IMPLEMENTED BY, AN ELECTRONIC MAIL SERVICE PROVIDER SITUATE IN
   22  THE STATE TO PREVENT THE TRANSMISSION OF UNSOLICITED ELECTRONIC MAIL  IN
   23  VIOLATION OF THIS SECTION.
   24    6.  ANY  PERSON OR OTHER ENTITY WHOSE PROPERTY OR PERSON IS INJURED BY
   25  REASON OF A VIOLATION OF ANY PROVISION OF THIS SECTION MAY SUE  THEREFOR
   26  AND  RECOVER  FOR  ANY  DAMAGES SUSTAINED AND THE COSTS OF SUIT. WITHOUT
   27  LIMITING THE GENERALITY OF THE TERM, "DAMAGES"  SHALL  INCLUDE  LOSS  OF
   28  PROFIT.
   29    7.  IF  THE  INJURY  ARISES  FROM THE TRANSMISSION OF UNSOLICITED BULK
   30  ELECTRONIC MAIL, THE INJURED PERSON OR OTHER ENTITY, OTHER THAN AN ELEC-
   31  TRONIC MAIL SERVICE PROVIDER,  MAY  ALSO  RECOVER  ATTORNEY'S  FEES  AND
   32  COSTS,  AND  MAY ELECT, IN LIEU OF ACTUAL DAMAGES, TO RECOVER THE LESSER
   33  OF TEN DOLLARS FOR EACH AND EVERY UNSOLICITED BULK MAIL  MESSAGE  TRANS-
   34  MITTED  IN VIOLATION OF THIS SECTION OR TWENTY-FIVE THOUSAND DOLLARS PER
   35  DAY. THE INJURED PERSON OR OTHER ENTITY SHALL NOT HAVE A CAUSE OF ACTION
   36  AGAINST AN ELECTRONIC MAIL SERVICE PROVIDER WHICH MERELY  TRANSMITS  THE
   37  UNSOLICITED BULK ELECTRONIC MAIL OVER ITS COMPUTER NETWORK. IF THE INJU-
   38  RY  ARISES FROM THE TRANSMISSION OF UNSOLICITED BULK ELECTRONIC MAIL, AN
   39  INJURED ELECTRONIC MAIL SERVICE PROVIDER MAY ALSO RECOVER THE GREATER OF
   40  TEN DOLLARS FOR EACH AND EVERY UNSOLICITED BULK ELECTRONIC MAIL  MESSAGE
   41  TRANSMITTED IN VIOLATION OF THIS SECTION OR TWENTY-FIVE THOUSAND DOLLARS
   42  PER DAY.
   43    8.  AT  THE REQUEST OF ANY PARTY TO AN ACTION BROUGHT PURSUANT TO THIS
   44  SECTION, THE COURT MAY, IN ITS DISCRETION, CONDUCT ALL LEGAL PROCEEDINGS
   45  IN SUCH A WAY AS TO PROTECT THE SECRECY AND SECURITY  OF  THE  COMPUTER,
   46  COMPUTER  NETWORK, COMPUTER DATA, COMPUTER PROGRAM AND COMPUTER SOFTWARE
   47  INVOLVED IN ORDER TO PREVENT POSSIBLE RECURRENCE OF THE SAME OR A  SIMI-
   48  LAR  ACT  BY  ANOTHER  PERSON  OR  OTHER ENTITY AND TO PROTECT ANY TRADE
   49  SECRETS OF ANY PARTY.
   50    9. THE PROVISIONS OF THIS SECTION SHALL NOT BE CONSTRUED TO LIMIT  ANY
   51  PERSON'S OR OTHER ENTITY'S RIGHT TO PURSUE ANY ADDITIONAL CIVIL REMEDIES
   52  OTHERWISE ALLOWED BY LAW.
   53    S 2. This act shall take effect on the first of November next succeed-
   54  ing the date on which it shall have become a law.